They are more common than you may think.
By Penny Lipsack
What would you do if a client reported that his or her child had been abducted across international borders?
Cases involving international child abduction can be heart-rending for your clients. The pain of unexpectedly losing contact with a child is often compounded by the complexities of dealing with long distances, a foreign court and family law system, a different language, and financial constraints.
Here is some practical information to assist you.
1. Section 55 of the Family Relations Act provides that the Hague Convention on the Civil Aspects of International Child Abduction has the force of law in B.C. The Convention is an international treaty in force among some 75 countries. It seeks to achieve the prompt return of children wrongfully removed or retained from their place of habitual residence. A removal or retention is wrongful when it is in breach of rights of custody held and exercised by a person, institution or other body. In most Convention cases, children are abducted by a parent. The Convention also operates to secure and facilitate access between parents and children separated by international borders.
2. Central authorities are the persons or offices through which jurisdictions fulfill their obligations under the Convention. The delegated central authority for B.C. is Penny Lipsack, a lawyer with the Ministry of Attorney General in Victoria.
The central authority assists parents whose children have been abducted either to or from B.C. Through the Convention process, the central authority provides information, advice and support to parents directly, or assists their legal counsel in B.C. or in the other jurisdiction. In particular, the central authority can
· advise if the foreign jurisdiction is a Convention treaty partner with Canada;
· provide an application form for a child’s return (or for access);
· provide information about the law and legal aid system in the other jurisdiction or in B.C., as applicable;
· assist the parent in obtaining legal counsel;
· provide information about other resources and courses of action available to the parent;
· provide support to the parent; and
· communicate with the central authority in the other jurisdiction.
3. The Canadian Network of Contact Judges was established to deal with interjurisdictional child custody and abduction cases. The Honourable Justice Bruce Butler is the contact judge for B.C. He oversees the assignment of Convention cases to judges in the B.C. Supreme Court.
When the Central Authority receives an application in B.C. for the return of a child, the B.C. Supreme Court is notified and a court file is opened. In most cases, soon after the court receives notice, a case conference is held with Justice Butler or with one of the other judges from the panel of judges who are assigned to Hague cases. The object of the conference is to facilitate the expeditious hearing of the application for the return of the child. A proceeding for return of the child is then commenced by Petition and the case is heard summarily on affidavit evidence.
In the course of a Hague proceeding, the B.C. Supreme Court may engage in direct communications with the court of a foreign jurisdiction. The communications are limited to logistical issues and the exchange of information concerning the proposed return of a child to his or her habitual residence. The parties or their counsel are notified in advance and are given the opportunity to participate in the communications, which take place by video or telephone. A thorough discussion of judicial communication with foreign courts is found in Hoole v. Hoole 2008 BCSC 1248.
For more information, parents or their lawyers can contact Penny Lipsack at 250-356-8433 or Penelope.Lipsack@gov.bc.ca.
This article was published in the August 2011 issue of BarTalk. © 2011 The Canadian Bar Association. All rights reserved.